This is an interlocutory appeal of a trial court order dismissing the State's
request for the death penalty and ordering a sentencing proceeding where a term
of years is the only option. We reverse and remand for reinstatement
of the death penalty request.

The defendant, Charles E. Barker, was convicted of two counts of murder and
one count each of kidnapping, confinement, burglary, and carrying a handgun without a
license. The jury recommended and the trial court imposed the death penalty.
Because the penalty phase jury was not instructed on the possibility of
life without parole, as required by statute, we reversed and remanded for a
new penalty phase proceeding. Barker v. State, 695 N.E.2d 925 (Ind. 1998).
On remand, the defendant successfully moved to dismiss the death penalty request
on grounds that Indiana's death penalty statute was facially unconstitutional in light of
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000). We reversed and again remanded for the new penalty phase proceeding.
State v. Barker, 768 N.E.2d 425 (Ind. 2002). The new proceedings
would be governed by the 2002 amendment to the Indiana death penalty/life without
parole statute, which applies to defendants sentenced after June 30, 2002. Ind.
Code § 35-50-2-9(e).

The defendant again moved to dismiss the death penalty request upon grounds not
previously asserted. The trial court granted the motion, concluding that Indiana's amended
death penalty statute is unconstitutional, dismissing the death penalty request, and directing that
this cause be scheduled for a sentencing proceeding where a term of years
is the only available option. Upon the State's request, the trial court
certified its order for interlocutory appeal. Because the Court of Appeals has
jurisdiction over interlocutory appeals, Ind. App. R. 14(B)(1), we granted the State's petition
to transfer before consideration by the Court of Appeals, App. R. 56(A), and
we accepted appellate jurisdiction over the interlocutory appeal. App. R. 14(B)(1).

1. "Weighing" Not a "Fact"

The procedures to be followed in cases where the State seeks the death
penalty or life imprisonment without parole cases are specified in Indiana Code §
35-50-2-9, which provides in relevant part as follows:
(e) . . . the jury shall
recommend to the court whether the death penalty or life imprisonment without parole,
or neither, should be imposed. The jury may recommend:
(1) the death penalty; or
(2) life imprisonment without parole;
only if it makes the findings described in subsection (l). If the
jury reaches a sentencing recommendation, the court shall sentence the defendant accordingly. .
. .
. . .
(l) Before a sentence may be imposed under
this section, the jury, in a proceeding under subsection (e), or the court,
in a proceeding under subsection (g), must find that:
(1) the state has proved beyond a reasonable doubt that at least one
(1) of the aggravating circumstances listed in subsection (b) exists; and
(2) any mitigating circumstances that exist are outweighed by the aggravating
circumstance or circumstances.
Ind. Code § 35-50-2-9.

In its interlocutory appeal of the trial court order, the State contends
that the trial court erred in concluding that, because it does not require
a penalty phase jury to find that mitigating circumstances outweigh aggravating circumstances beyond
a reasonable doubt, the Indiana death penalty statute was unconstitutional. The State's
appeal argues that weighing is not a "fact" that requires proof beyond reasonable
doubt under Apprendi and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428,
153 L.Ed.2d 556 (2002). It also urges that the Ring requirement for
a jury to find beyond a reasonable doubt any fact that makes a
murder defendant eligible for the death penalty applies only to aggravating circumstances under
the Indiana scheme. The State argues that it is these circumstances, not
the "outweighing" factor, that determine a murder defendant's eligibility to be considered for
the death sentence.

In response, the defendant argues that under the Ring/Apprendi rule, the focus must
be on the effect of the factor on sentencing. Where any factor
is required to support a sentence higher than that authorized by the guilty-phase
jury's verdict, the defendant asserts, that factor is equivalent to an element that
must be proven beyond a reasonable doubt. He urges that, because the
imposition of a death sentence in Indiana requires the penalty phase jury to
find that "any mitigating circumstances that exist are outweighed by the aggravating circumstance
or circumstances," Ind. Code § 35-50-2-9(l), the Ring/Apprendi rule mandates that such "weighing"
factor be proven beyond a reasonable doubt.

After briefing was completed in this case, this Court addressed the same question
in Ritchie v. State, ___ N.E.2d ___ (Ind. 2004). There we held
that "[n]either federal constitutional doctrine under Apprendi and Ring nor Indiana state jurisprudence
leads to the requirement that weighing be done under a reasonable doubt standard."
Id. at ___ (slip op. at 8). After a careful evaluation
of substantially the same arguments and a review of decisions from other jurisdictions,
we concluded that "the Indiana Death Penalty Statute does not violate the Sixth
Amendment as interpreted by Apprendi and Ring. Once a statutory aggravator is
found by a jury beyond a reasonable doubt, the Sixth Amendment as interpreted
in Ring and Apprendi is satisfied." Id. at ___ (slip op. at
10).

Because there is no constitutional requirement that the weighing factor be found beyond
a reasonable doubt, the omission of such a requirement in the Indiana death
penalty statute does not violate the constitution. The trial court erred in
its conclusion to the contrary.

2. The "Hung Jury" Provision

The defendant also contends that the trial court order finding the death penalty
statute unconstitutional should be affirmed on various alternative grounds, one of which is
that the statute unconstitutionally permits a death sentence to be imposed by a
judge alone in cases where the jury cannot reach a sentencing decision.
Ind. Code § 35-50-2-9(f) (hereafter "Subsection 9(f)").
See footnote He argues that this provision
violates
Ring, that it renders the entire death penalty statute unconstitutional, and that
the Court has no power to sever the provision.

Barker's procedural history does not include a hung jury. As explained supra,
the defendant's penalty phase jury unanimously recommended a sentence of death, but due
to instruction error, we reversed and remanded for a new penalty phase procedure.
The issue now presented is the validity not of his previous penalty
phase jury determination but of the procedure that would govern his retrial.

The State's written argument to the trial court includes the following: "The State
concedes that the procedure set forth in IC 35-50-2-9(f), if it were followed
by a trial court in sentencing a defendant to death (or to life
without parole), would be in violation of Ring." Appellant's Appendix at 142.
We decline to accept the concession. As noted in Ritchie, the
federal constitution requires aggravating circumstances to be determined by a jury beyond a
reasonable doubt, but "it does not require the weighing, whether by judge or
jury, to be under a reasonable doubt standard." ___ N.E.2d at ___
(Slip op. at 8). The statute now requires the trial court to
"provide a special verdict form for each aggravating circumstance alleged." Ind. Code
§ 35-50-2-9(d). It is thus conceivable that a penalty phase jury could
return a verdict finding one or more aggravators proven beyond a reasonable doubt,
but be unable to reach unanimous agreement on whether any mitigating circumstances are
outweighed by the aggravating circumstances.
See footnote Where a jury is thus unanimous in
finding one or more aggravating circumstances proven beyond a reasonable doubt but unable
to agree on a sentence recommend
ation, Subsection 9(f) applies to instruct that the
court shall "discharge the jury and proceed as if the hearing had been
to the court alone." In this event the trial court shall, based
upon the evidence presented to the penalty phase jury, impose a sentence of
death or life without parole upon a full and proper analysis and sentencing
statement, see Harrison v. State, 644 N.E.2d 1243, 1261-1262 (Ind. 1995), or it
may impose a term of years.

In the event a penalty phase jury is unable to reach a unanimous
decision as to the existence of aggravating circumstances, however, Ring and Apprendi would
prohibit the trial judge from proceeding under Subsection 9(f) and a new penalty
phase trial would be required. Bostick v. State, 773 N.E.2d 266, 273-74
(Ind. 2002). We are not persuaded that a penalty phase retrial under
these circumstances should be treated any differently than a hung jury in an
ordinary guilty phase trial: a mistrial should be declared and the case submitted
to a new jury. See State v. McMillan, 409 N.E.2d 612 (Ind.
1980); Hinton v. State, 397 N.E.2d 282 (Ind. 1979); Harlan v. State, 190
Ind. 322, 130 N.E. 413 (1921).

We additionally observe, however, that even if Subsection 9(f) were unconstitutional as Barker
alleges, it could be severed without impairing the validity of the remainder of
the statute. The trial court correctly noted that the hung jury provision
of the statute could be subtracted without invalidating the entire statute, citing Brady
v. State, 575 N.E.2d 981, 988-89 (Ind. 1991). Appellant's Appendix at 216.
See footnote
We applied this procedure in
Bostick, 773 N.E.2d at 273-74, where a
jury was unable to reach a unanimous determination finding the qualifying aggravating circumstances
beyond a reasonable doubt, and the trial judge then imposed a sentence under
the hung jury provision of Subsection 9(f).
See footnote Applying
Apprendi and Ring, we
vacated the trial court's sentence and remanded for a new sentencing proceeding.

As noted in Brownsburg Area Patrons v. Baldwin, 714 N.E.2d 135, 141 (Ind.
1999), this Court has an overriding obligation to construe our statutes in such
a way as to render them constitutional if reasonably possible. "If a
statute can be construed to support its constitutionality, such construction must be adopted."
Burris v. State, 642 N.E.2d 961, 968 (Ind. 1994). As noted
in State v. Monfort, 723 N.E.2d 407, 415 (Ind. 2000) and In re
Public Law No. 154-1990, 561 N.E.2d 791, 793 (Ind. 1990), this Court has
adopted the test for severability used in Dorchy v. Kansas, 264 U.S. 286,
289-90, 44 S.Ct. 323, 324, 68 L.Ed. 686, 689-90 (1924) (internal citations omitted):
A statute bad in part is not necessarily void in its entirety.
Provisions within the legislative power may stand if separable from the bad.
But a provision, inherently unobjectionable, cannot be deemed separable unless it appears both
that, standing alone, legal effect can be given to it and that the
legislature intended the provision to stand, in case others
included in the act and held bad should fall.
The key question is whether the legislature "would have passed the statute had
it been presented without the invalid features." State v. Kuebel, 241 Ind.
268, 278, 172 N.E.2d 45, 50 (1961).

The text of subsection 9(f) has long been a part of the Indiana
statute governing sentences of death and life imprisonment without parole. Before the
2002 amendment, the statute provided that the jury would make a sentencing recommendation,
but the trial court was assigned the responsibility for determining the sentence, and
it was not bound by the jury's recommendation. Subsection 9(f) provided that,
in the absence of a unanimous decision of the sentencing jury, the trial
judge would proceed to determine the sentence without the jury's recommendation. The
2002 amendment shifted the final sentencing decision to the jury, stating: "If the
jury reaches a sentencing recommendation, the court shall sentence the defendant accordingly."
Ind. Code § 35-50-2-9(e). Even though the amendment assigned the jury the
primary responsibility for the sentencing decision, it did not delete subsection 9(f) from
the statute. If subsection 9(f) were to be judicially severed, we are
convinced that the legislature fully intended the remainder of the Indiana death penalty/life
without parole statute to stand because its absence would not impair the operation
of the remainder of the statute. We maintain, however, that subsection 9(f)
should not be stricken at all. As discussed above, we reject Barker's
constitutional challenge to subsection 9(f).

We hold that Subsection 9(f) is not unconstitutional as written, but that it
may not be constitutionally applied to permit a judge to impose a sentence
where a jury has been unable to decide whether the aggravating circumstance or
circumstances have been proven beyond a reasonable doubt. This does not impede
the State's request for the death penalty in Barker's case.

3. "Recommend" and Special Verdict Language in Statute

The defendant also contends that the amended Indiana death penalty statute is unconstitutional
because it "systematically diminishes the jury's sense of responsibility." Br. of Appellee
at 25. He argues that the statute contains several references to the
jury's duty as making a "recommendation" but that "nowhere does it state or
suggest the jury's role is anything other than advisory." Br. of Appellee
at 30. We reject this argument.

Although the 2002 amendment did not alter the prior statute's use of the
word "recommend," subsection 9(e) as amended now explicitly states: "If the jury reaches
a sentencing recommendation, the court shall sentence the defendant accordingly." Ind. Code §
35-50-2-9(e). Under the statute, "there is only one sentencing determination, which is done
by the jury." Stroud, ___ N.E.2d at ___ (slip op. at 15).
"The judge must apply the jury's determination." Id. We assume
that jury instructions will make this clear to the jury during the new
penalty phase proceedings.

The defendant also expresses concern that the provision calling for the jury to
receive a special verdict form, Ind. Code § 35-50-2-9(d), leads to the conclusion
that "the court remains free to sentence to death where a jury finds
statutory aggravation even if it unanimously recommends a sentence less than death."
Br. of Appellee at 38. As discussed above in Part 2, a
judge may determine the sentence under Subsection 9(f) if a penalty phase jury
unanimously finds one or more aggravating circumstances proven beyond a reasonable doubt.
Where a jury finds aggravating circumstances but decides against the death penalty (or
against life imprisonment without parole), however, we conclude that with its 2002 amendment
to Subsection 9(e) requiring the court to sentence a defendant "accordingly," the legislature
did not intend to permit a trial court to order a penalty expressly
rejected by the jury. The amendment did more than add the following
language to Subsection 9(e): "If the jury reaches a sentencing recommendation, the
court shall sentence the defendant accordingly." Acts 2002, Public Law 117, Section
2. It also deleted prior language providing that "[t]he court shall make
the final determination of the sentence, after considering the jury's recommendation . .
. . The court is not bound by the jury's recommendation." Id.
We therefore hold that once a penalty phase jury reaches a recommendation
against the death penalty (or life imprisonment without parole), a trial court may
not thereafter enter judgment providing for a greater sentence.
See footnote

4. Ex Post Facto

The defendant contends that the trial court's finding of unconstitutionality may be supported
for the alternative reason that application of the amended death penalty statute violates
the prohibition on ex post facto laws. The murder for which Barker
awaits sentencing was committed in August of 1993, and the statute as amended
in 2002 applies to all sentencing hearings held after June 30, 2002.

The trial court's order of June 27, 2003, finding that Indiana Code §
35-50-2-9 is unconstitutional and dismissing the State's request for the death penalty, is
reversed. We remand for reinstatement of the State's death penalty request and
for penalty phase proceedings as previously ordered by this Court.

Shepard, C.J., concurs.
Sullivan, J., concurs with separate opinion.
Boehm, J., concurs, except as to the description of the effect of the
2002 amendments to the Death Penalty Statute, as to which his views are
set forth in his separate opinion in Helsley v. State, __ N.E.2d __
(Ind. 2004) (slip op. at 15).

Rucker, J., concurs in result with separate opinion.

Sullivan, Justice, concurring.

In Bostick v. State, 773 N.E.2d 266, 274-75 (Ind. 2002), I dissented from
the proposition that remand for a new penalty phase was a permissible option
under Indiana Code § 35-50-2-9 where the jury is unable to reach a
unanimous sentencing recommendation. I acknowledge Bostick as stare decisis for this and
future cases.

Rucker, J., concurring in result.

I agree that Indianas death penalty statute is not unconstitutional. Therefore I
concur in result with the majority opinion. My primary point of departure
however with the majority opinion is its conclusion that [n]either federal constitutional doctrine
under Apprendi and Ring nor Indiana state jurisprudence leads to the requirement that
weighing be done under a reasonable doubt standard. Slip op. at 3
(quoting Ritchie v. State, No. 49S00-0011-DP-638, ___ N.E.2d ___, ___ (Ind. 2004)).
My view is quite the opposite. The maximum punishment for murder is
a term of years. In order for a defendant to become death
eligible after a guilty verdict of murder, two separate and independent factors must
be found: (i) the existence beyond a reasonable doubt of at least one
of the statutory aggravating circumstances, and (ii) the aggravating circumstances outweigh the mitigating
circumstances. See Ind. Code § 35-50-2-9(l); Brown v. State, 698 N.E.2d 1132,
1144 (Ind. 1998). Under Apprendi other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt. 530 U.S. at 490. To say that the process of
weighing is not a fact but a traditional sentencing factor Br. of
Appellant at 9, should provide the State no refuge. As Apprendi makes
clear the relevant inquiry is not one of form but of effectdoes the
required finding expose the defendant to a greater punishment than that authorized by
the jurys guilty verdict? Id. at 494 (emphasis added). Ring is
even more explicit: If a State makes an increase in a defendants authorized
punishment contingent on the finding of a fact, that factno matter how the
State labels itmust be found by a jury beyond a reasonable doubt.
536 U.S. at 602. I continue to believe that perhaps unlike the
capital sentencing schemes in some other jurisdictions, it is the structure of Indianas
capital sentencing statute that pulls it in within the embrace of the Apprendi
and Ring doctrine. Ritchie, ___N.E.2d at ___ (Rucker, J., dissenting in part).
In my view the plain language of the statute makes death eligibility
contingent upon certain findings that must weighed by the jury on proof beyond
a reasonable doubt.

Having said that, I would nonetheless not declare the weighing portion of the
death penalty statute unconstitutional. [I]f an otherwise acceptable construction of a statute
would raise serious constitutional problems, and where an alternative interpretation of the statute
is fairly possible, we are obligated to construe the statute to avoid such
problems. Id. (quoting I.N.S. v. St. Cyr, 533 U.S. 289, 299-300 (2001)).
Rather, I would simply construe I.C.§ 35-50-2-9(l) as implicitly requiring the jury
to find beyond a reasonable doubt that any mitigating circumstances that exist are
outweighed by the aggravating circumstance or circumstances. Thus construed the statute would
be consistent with the dictates of Apprendi and Ring.

Footnote: The provision states: "If a jury is unable to agree on a
sentence recommendation after reaso
nable deliberations, the court shall discharge the jury and proceed
as if the hearing had been to the court alone." Ind. Code
§ 35-50-2-9(f). Footnote: For a thoughtful examination of various alternative penalty phase outcomes, see Justice
Sull
ivan's concurring and dissenting opinion in Saylor v. State, 765 N.E.2d 535, 573-576
(Ind. 2002). Footnote: The trial court found that subsection 9(f), "although improper, does not jeopardize
the constit
utionality of I.C. § 35-50-2-9 inasmuch as the statutory framework remains intact,
and viable, in the absence of the offending subsection." Appellant's Appendix at 216.
This appears inconsistent with the same trial court's order on the same
date in a different case, wherein the court stated that removing subsection 9(f)
"does not leave a complete and operative statute as required by Brady."
State v. Ben-Yisrayl, ___ N.E.2d ___, ___ n.2 (Ind. 2004) (slip op.
at 3)Footnote: In
Bostick, the State sought not the death penalty but life without
parole, both of which are governed by the same statutory provision, Ind. Code
§ 35-50-2-9(f). Footnote: Barker does not challenge the authority of a trial court under the
statute to sentence a defendant to a penalty lesser than that unanimously recommended
by a penalty phase jury, and thus we decline to address this question.